Ballard v. State

On
Appeal from the 183rd District Court Harris County, Texas
Trial Court Case No. 1390115

Panel
consists of Justices Jennings, Higley, and Massengale.

OPINION

Michael Massengale Justice

A jury
convicted appellant Walter Harvey Ballard, Jr. of possession
of child pornography. See Tex. Penal Code §
43.26. The jury found true the allegations of an enhancement
paragraph, that Ballard previously had been convicted of
felony sexual assault, and it assessed punishment at 13 years
in prison and a fine of $10, 000. On appeal, Ballard
challenges the sufficiency of the evidence to support his
conviction. He also contends that the trial court erred by:
denying his motion to suppress evidence; denying his motion
for a mistrial made after one of the State's witnesses
violated a limine order; and overruling his objection to the
State's allegedly improper jury argument during the
punishment phase of trial.

Because
the evidence was sufficient to support Ballard's
conviction, and the trial court was not shown to commit any
other reversible error, we affirm the judgment of conviction.

Background

Appellant
Walter Harvey Ballard, Jr., a paralegal, lived in Houston
with his girlfriend, Lisa Davis. Officer Russell Ackley, an
officer with the Houston FBI Child Exploitation Task Force,
learned through an investigation that someone using an
Internet Protocol (IP) address assigned to Ballard's
residence was sharing child pornography on a peer-to-peer
file-sharing network.

Officer
Ackley executed an affidavit in support of a request for a
warrant to search Ballard's home for child pornography.
In the affidavit, he outlined his experience and training in
investigating child-pornography cases and the sexual
exploitation of children. Officer Ackley explained that he
searched the national Internet Crimes Against Children
database to find computer users in the Houston area who were
making files containing child pornography available for
download. He identified a particular IP address that was
making videos available for download with titles descriptive
of child pornography, and he downloaded five files from that
IP address using the peer-to-peer file-sharing network. The
downloaded files contained images and movies of child
pornography. He issued an administrative subpoena to an
internet service provider where the IP address was
registered, and he learned that at the time he downloaded the
videos, the IP address was assigned to Walter Ballard in
Houston.

Based
on the information in Officer Ackley's affidavit, a
federal judge issued a warrant to search Ballard's
residence. The warrant's description of the places to be
searched or the persons or items to be seized was placed in
two attached exhibits. The attachments described, in detail,
Ballard's house and the items to be seized there. After
the issuance of the warrant, Officer Ackley and several FBI
agents went to Ballard's residence to search for child
pornography. Prior to the search, the officers only provided
Ballard with a copy of the warrant without the attachments.
They did not have copies of the attachments when they began
the search.

During
the search of Ballard's home, law-enforcement officers
seized several computers, loose external hard drives, and
compact discs. Once the search was completed, the officers
left a copy of the warrant, including both of its
attachments, and an inventory of the items seized from the
home. Following the search, a forensic examination of the
seized digital devices was performed. As a result, Officer
Ackley discovered that a computer found in the house
contained "a couple of hundred videos" that, based
on his experience and training, he identified as child
pornography. In addition, a loose external hard drive and at
least eight CDs contained child pornography.

After
the forensic examination of the items seized from the home, a
grand jury returned an indictment charging Ballard with
possession of child pornography. The indictment included an
enhancement paragraph alleging that Ballard previously had
been convicted of sexual assault.

Prior
to trial, Ballard filed several motions in limine. The trial
court granted one of the motions regarding the admissibility
of extraneous-offense evidence, and it ordered the State to
approach the bench before presenting such evidence. Ballard
also filed several motions, under a variety of legal
theories, to suppress all evidence obtained during the search
of his house. Specifically, he argued that the search was
unreasonable because, prior to the search, the officers did
not provide him the warrant's attachments which described
his house and the items to be seized. He also argued that the
search was unreasonable because the officers did not have
probable cause to search his house once they discovered that
the IP address identified by Officer Ackley was attached to
an unsecured wireless network.

The
trial court held a hearing on Ballard's motions to
suppress. At the hearing, Officer Ackley testified about his
investigation. He also testified that another officer,
Officer John Barnes, had downloaded child pornography from
the same IP address. In addition, Officer Ackley explained
that he did not have copies of the attachment to the warrant
with him prior to the search of Ballard's home, but
following the search he left copies of the warrant with
attachments, along with an inventory of seized items. The
court denied Ballard's motions to suppress and filed
findings of fact and conclusions of law.

At
trial, the State called several witnesses, including Officer
Ackley, to testify about the search of Ballard's house
and the results of that search. Initially, Officer Ackley
described the investigation he conducted using peer-to-peer
software, and he identified Ballard as one of the people
located at the house when the search began. He testified that
29 digital devices including computers, external hard drives,
and CDs were seized from the home and examined forensically.
After the forensic examination, Officer Ackley reviewed the
files identified by the forensic examiner as possibly
containing child pornography. One of the computers seized
contained "probably a couple hundred videos"
depicting child pornography. Additionally, Officer Ackley
stated that files were saved on the various digital devices
between 2007 and 2013. The State introduced and played a
video found on the desktop computer seized from Ballard's
home office. Officer Ackley described the contents of the
video, and based on his experience and training opined that
the video was child pornography. Officer Ackley also opined
that Ballard was the person who possessed the child
pornography.

In
addition to Officer Ackley, an FBI agent testified about his
role during the search, which included performing a
"forensic preview" of the desktop computer in
Ballard's office. The "forensic preview"
allowed the officers to preview the contents of a computer
without writing any data to the hard drive. According to the
agent, the computer was turned on when he entered the office,
and a legal document was displayed on the desktop. Before
performing the "forensic preview, " the agent
accessed the start menu, and a video player was identified as
a "recently used" application. Without selecting
the video player, the agent was able to see that several of
the recently played videos had titles indicative of child
pornography. The agent then described the process he
undertook to conduct the "forensic preview, " which
identified several files on the computer's hard drive
with titles consistent with child pornography.

After
the agent testified about the forensic preview, the State
questioned him about his role in the rest of the search. In
response to this line of questioning, the agent answered that
"crystal meth" and a gun also had been found in the
home. Defense counsel requested that the jury be instructed
to disregard these comments and moved for a mistrial because
the agent's answer violated the limine order regarding
extraneous offenses. The court instructed the jury to
disregard the agent's answer and denied the motion for a
mistrial.

The
State also called Lisa Davis, Ballard's girlfriend, to
testify about the contents of the house and the people who
lived there. Davis identified the room where the desktop
computer, external hard drives, and CDs containing child
pornography were found as the office where Ballard did a lot
of his work as a paralegal. Davis also testified that Ballard
was the primary user of the computer and that he used it
"all the time." Further, Davis identified Clifton
Hall as Ballard's nephew who had lived in the house for a
period of time prior to the search. According to Davis, Hall
moved into the house for a few months and moved out about a
week before the search took place. Davis had never seen Hall
using Ballard's computer except to search for jobs.

The
jury found Ballard guilty of possession of child pornography.

During
the punishment phase, the State discussed in its closing
argument parole law and the charge instruction provided to
the jury regarding parole law. Ballard objected to the
State's discussion of parole law as improper argument.
The trial court overruled this objection.

The
jury found the allegation of the enhancement paragraph to be
true and assessed punishment at 13 years in prison and a fine
of $10, 000. Ballard appealed.

Analysis

On
appeal, Ballard challenges the sufficiency of the evidence to
support his conviction. He also contends that the trial court
erred by: denying his motion for a mistrial based on the FBI
agent's comments about an extraneous offense; denying his
motions to suppress; and overruling his ...

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